CHAPTER FIVE - RESPONSIBILITY FOR THE ALLEGED REMOVALS OR DISAPPEARANCES

Criminal Acts intended or calculated to provoke a state of
terror in the general public, a group of persons or particular
persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religions or any
other nature that may be invoked to justify them;1

Although the recognition of the fact that all crimes are to be
condemned should never be lost, it is most important to emphasise
the special character of the crimes committed by the state which
uses its power to violate the law rather than to uphold it.2

Your Excellency has mandated this Commission to report
on

"Whether there is any credible material indicative of the
person or persons responsible for the alleged removals or
disappearances."3

The Material Available

This will be considered under:

The material available with regard to individual
perpetrators

The material available with regard to the category of
perpetrators

The material indicative of the existence of a Political
Dimension.

A. The Material Available with Regard to Individual
Perpetrators

1. According to the available evidence the cases inquired into
by us can placed in three categories:

(i) Where there is credible material indicative of the person
or persons responsible to warrant further investigations for the
purposes of legal proceedings.

(ii) Where the material available is insufficient to warrant
further investigation for legal proceedings.

(iii) Where there is no material whatsoever to identify the
individual perpetrators.

In respect of all these three categories we do not have
before us the evidence of the persons against whom there
are allegations. Until further investigations by the
investigative authorities are held confidentiality must
prevail both in respect of the nature of the evidence
available and in respect of the identity of persons
implicated by such evidence. Accordingly we are
submitting to Your Excellency under separate cover the
list of names of individuals in respect of whom there is
credible material before this Commission.4

This list is sub-divided into three parts :

i. The first section consists of names of persons who are
implicated in three or more instances coming within our
Mandate;

ii. The names of persons thus implicated on two occasions
;

ii. The names of persons who are implicated in respect of
one incident

In view of the serious nature of the acts revealed by the
evidence available to date, Your Commissioners recommend
that the investigations by the IGP should be under the
supervision of the Attorney General and be referred to
the Attorney General for the determination of the
appropriate legal proceedings that should ensue.

B. The Material Available with Regard to the Category of
Perpetrator

In the 7239 cases where disappearance was proved the
identification by the petitioners of the category of perpetrators
responsible was as follows:5

Agents of the State/para military groups
in collaboration with them - 4858

1. Identification by the petitioners of the category of
perpetrators responsible we found to be based on the following
factors:

Factors Specific to the Corpus

Such as his political affiliation, or that there had been
an evasion of earlier searches for him;6
his refusal to identify himself with the political structure
at village level;7
that he held public office/ was a Government employee/ a
family member of a member of the Security Forces/ had
asserted his right to vote or contest in elections.8

Factors Specific to a Perpetrator who had animosity
towards the corpus

Eg : A person who was a locally recruited Reserve
Police Constable, MP's Security Guard etc. allied with
the fact of the Security Forces' acceptance without
independent investigation of an 'Information' laid
by such a person, invested that person with the power to
'use' the Security Forces for his own ends.

Factors Specific to the times

E.g: The corpus was taken in a combing-out
operation by the Security Forces, or modern weapons and
vehicles were used in the incidents of abduction, or killed
for defying an "unofficial curfew".

In all these instances the petitioners were
clearly aware that what had happened went for beyond what
could be attributed to a break-down of relations between the
particular perpetrators and the victim. While seeking to
identify the person who had been the immediate link in bringing
the 'system' into operation against them, they would
describe the prevalent situation graphically and in concrete
terms.

2. The Pattern Of The Incident

The pattern of the incident was a general indicator of
the agency involved. The subversive act was a destruction9 of a person in as
public a manner as possible. The corpse would be left
identifiable bearing several ante-mortem injuries of a brutal
nature and a placard be displayed, bearing a message such as
"Death to Informers". There would usually be
instructions that the body be buried without ceremony, and the
marks of respect to the dead usual in our society.

The Technique of abduction and disappearance adopted by
the Forces was of a different nature. While the abduction would
be done very publicly, the re-emergence of the body if at all,
would be in a mutilated state that made its identification
difficult. When these bodies were left in public places they were
not accompanied by a claim as to who were the perpetrators.10

The Payment of Compensation by the Slate for loss due
to Subversive Act

It is now over 7 years since the occurrence of the incidents
under review. In that period a distinguishing mark of the
category of the perpetrators has come into existence by reason of
the fact that until August 1994 the State paid compensation only
in respect of loss suffered at the hands of one category of
perpetrators i.e. the subversives.11

The Recording of Complaints by the Police

In the period under review another pointer to the category of
perpetrators was the nature of complaints recorded by the police.
If the act complained of (in the opinion of the police) had been
committed by subversive elements the complaint had been recorded,
B Reports filed and Post Mortems held. If the case was otherwise,
in the majority of cases no complaint had been recorded at all.
In instances when the complaint was recorded the police had
either refused to record the name of the alleged perpetrator when
taking down the complaint or had described it as
"perpetrator unknown".

There was a perception that the JVP had targeted
outstanding youth who revealed leadership quality at
village-level for recruitment. This led to the "elimination
of outstanding youth" at the local community level.

Time and time again this theme came up in evidence
berate the Commission.

My son was popular, the youth turned to him for advice.

My brother was the only educated youth in our area;
everyone came to him when a letter needed to be written.

We are of the depressed caste, but my son was an
outstanding sportsman and popular among the youth.

The Elimination of "potential groups" had
become a permitted tactic of counter-subversion. The
petitioners before us spoke of this from their personal
experience.

"Broilers"

A practice of keeping in unrecorded detention
"stocks" of detainees of a certain age-group, who had
been taken into custody in combing-out operations or casually off
the road/beach was evident in several instances from the evidence
of returned detainees. These persons then disappeared without
trace after being taken out of the camp generally following on a
subversive act that had caused loss of life or damage to property
damage or on the camp being dismantled. Given the practice of
'reprisal killings'13
sinister significance attached to these disappearances from State
custody. Hence the slang of the period :

"Broiler" = an article for consumption.

Figure "5"

It is clear from the evidence before the Commission, that
counter-insurgency tactics of 'physical elimination'
often took the facile from of the so-called identification of
"Groups of 5."14
In fact the recurrence of the feature of
abductions/disappearances occurring in "Groups of 5"
was a revealing mark of the perpetrator like 'like the mark
of ash on the shoulder of the thief of the ash-pumpkin' in
the popular village tale.15

The arrest of persons perceived to come within specially
targeted groups for questioning, is possible under recognized
procedures of law. That "abduction" rather than
"arrest" was the preferred method of operation, is a
clear indication that physical elimination of the persons
taken-in was not ruled out. Given, additionally the unrecorded
nature of the initial abduction and detention the temptation to
adopt 'elimination' as a practice was inevitable.

C. The Material Indicative of the Existence of a
Political Dimension

1. The testimony of Individual Petitioners

The common features of the narration by thousands of
humble petitioners in

respect of thousands of abductions and disappearances, bore
powerful witness to the fact that what we were looking at was an
orchestrated phenomenon and not a series of isolated instances
explicable in terms of "excesses" by individual
transgressors.16

The transactions spoken to by these witnesses are mainly
2 fold :

(i) Killing on the spot or following on shortly
after forcible removal. In both instances the resulting dead body
itself constituted a "Weapon", with its display
constituting an intimidatory warning, this would happen to you
too if you do not accede to our wishes."

Where the Killing was at subversive hands, a placard was often
displayed at the spot, couching this message in so many words.
These bodies often bore marks of brutal practices. Several
autopsy reports lead in evidence bore witness to this. Autopsy
reports on certain other bodies, almost invariably ascribed by
witnesses to be killings by the Security Forces, bore evidence of
the use of modern fire-arms, while some of this category were cut
and chopped about in savage mimicry of subversive killings and
alleged they were the work of this-or-that "vigilante"
group in reprisal for subversive acts.

(ii) Disappearances following on abductions : These
abductions were actually witnessed, or they were abduction
inferred from surrounding circumstances within the knowledge of
witnesses including "the climate of the times", which
was so markedly hostile and mechanical of execution as to justify
naming the resulting category of victims as
"Age-Victims"17

The Clandestine nature of these transactions is very clear.
The series of acts described are clearly done with knowledge that
the conduct was altogether outside permitted boundaries of the
law.

Killings on the spot, termed extra-judicial killings,
constitutes the ultimate in "involuntary removal".
Disappearance following an abduction is in our finding only a
euphemism for a killing, a reality that the absence of recovery
of the body should not be allowed to obscure.

2. The evidence of returned detainees

A valuable pointer to the fate that befell many of the
abducted is to be found in the evidence of the many returned
detainees who have come before the Commission whether as
petitioners on their own behalf or as witnesses to the fate of
others. They constitute a powerful credible body of evidence on:

The serious, often fatal injuries suffered by the
prevalent practices of torture by the authorities with
the attendant issue of disposal of bodies.

The transport of detainees to undisclosed destinations in
circumstances loudly speaking to the clandestine nature
of the journey - Removal of number plates/ affixing of
false number plates to the vehicles, use of fire arms,
implements for digging old tyres taken along, on these
journeys being inconsistent with the object of the
journey being a lawful one.

In some instances "confession" to participation
in such "extermination" under duress etc.

3. Mutilated Bodies at Public Places

The evidence of members of the public was that mutilated
bodies at public places was a common sight.

4. Mass Graves

Mass Graves came into existence Contemporaneously. The
inference as to who were the creators is inescapable when the
massive logistics entailed, not to mention their proximity to
locations under state control, are taken into consideration.18

5. The United Nations Working
Group on Enforced and Involuntary Disappearances (WGEID)'s

The UN Working Group's compilation of a list of 12,000
separate cases of disappearances reported by voluntary
organisations, and the ICRC"s records.19

6. Habeas Corpus Applications filed in this period

These cases provide a record of the allegation of
disappearance from state custody.20

7. The Political Dimension

Acknowledgement of the political dimension inherent in the
scene revealed by the evidence before this Commission, is a
necessary response to the trust and confidence reposed in the
Commission by the thousands of witnesses who spoke openly placing
their hard-earned experience, and perceptions on record.

(i) The Public Perception.- The Public Perception was
that the conspicuous spectacle of impunity21
could not have existed without the complicity of
the political leadership. The various allegations before us of
the close participation of the local politicians in the exercise,
the various allegations of 'informers' who functioned
as the channel of misinformation from the politicians to the
security Forces, the allegation of 'Lists' of names of
political enemies being supplied to the Security Forces for
elimination, are all based on this perception.

(ii) Confirmation by 2 Senior Officials. - This
perception of the petitioners has found confirmation in the
evidence of two Senior officials of that time, one of the Police
the other of the Army, who have given evidence under oath on the
role played by politicians of the governing party in the
counter-subversion exercise, the practice of the preparation of
'Lists' of names by them, and the issue by them of
illegal orders, for execution by the Police and Army respectively

When the second insurrection-wave struck the Police Force was
dependent on informers. Hence the phenomenon of Members of
Parliament who were providing the political direction to the
anti-subversive drive being supplied with 'Lists' of
names by informers, who in turn passed them over to the Forces
and the Police. In 1971, the Political authority at District
level was required to give support to the Forces. By the second
insurrection the Provincial Councils had come into operation.
There was an administrative direction that the Deputy Inspector
General (DIG) should be subjected to the control of the political
authority usually the Chief Minister, notwithstanding the fact
that Police powers had not been developed to the Provincial level
under the 13th Amendment.

This confirms the practice of 'Lists', whose source
was the local politician. It also clarifies the path by which the
Security Forces came to be used in the narrow interests of
particular politicians.

Further it makes clear that the police had to put into effect
directions that were clearly outside the law.

Lt. General Rohan Daluwatta, Commander Sri Lankan Army, has
stated

While I was co-ordinating Officer, Ratnapura certain political
pressures were brought to bear on me. I was given a list of names
with the direction to take them into custody, that they were
JVPers. I received the List from a former Minister.....When I
checked the list with the Police, I came to know that they were
SLFPers. I was told, that area could be cleared were I to catch
them.22

(iii) The use of the Forces and Police in the Narrow
Interests of Politicians.- This was spoken of by two
Inspectors-General of Police in their evidence before us.

In the promotion of Udugampola, SP over 15 more senior
officers, to the rank of DIG, I saw the portents of the plan to
use the Police Force in the narrow interests of politicians. It
was clear to me that alternative structures of command were being
put in place within the Police force for the purpose. I realised
that a system of promotions to this effect was being put into
operation.

I am aware that there were specific instances where rapid
promotions were given. One was that of Mr. Premadasa Udugampola
who was an Inspector of Police in 1977 and had rapid journey
through the ranks of A.S.P., S.P., Senior S.P., and became Deputy
Inspector General by about 1988 (in 10 years time). At that time
it was mentioned that this officer had moved over 180 other
officers at different stages.

Among the rank and file there was a degree of disillusion and
heart-burn, for there were persons who had become able to move
upward quite freely within the police. This disillusion affected
discipline.

A specific instance I will give is the Mulkirigala
by-election.23 At this
time found that contrary to specific orders made at Head Quarters
there were certain police officers moving about the electorate.
At this time I was DIG Greater Colombo and Southern Range. I
found that Mr. Udugampola, then SSP Gampaha had moved into
Mulkirigala electorate on his own, He had brought with him
several officers in charge from his division. There were no
orders for him or other officers in charge to perform any duties
within the electorate. Later, there were many complaints received
about bands of police intimidating the public and committing acts
of thuggery; and there was evidence that the police had beaten up
voters to prevent them from going to vote.

My experience is not limited to the day of election, This
feature I have described was continued police thuggery. The
complaints came from Kirama Weeraketiya, Walasmulla and
Middeniya. It was organised and widespread

We have also noted that former Inspector General of Police Mr.
E. E. B. Perera in his evidence before the Presidential
Commission of Inquiry into Disappearance of persons, unlawful
Arrest of Persons and the Operation of Places of Detention at the
Batalanda Housing Scheme" had stated that

There were several occasions when we had to put into effect
directions that were clearly outside the law. Not just one
occasion. It was undoubtedly due to the fact of undue
interference by the Executive that Ronnie Gunasinghe was not
taken into custody.24

Some instances of the political control of the structures
follow.

(i) The Lakshman Perera Case: Lakshman Perera was a dramatist
and poet and Pradeshiya Sabha MP of the Governing Party. Soon
after posters appeared in and around Colombo advertising his
satirical play termed "WHO IS HE? WHAT IS HE DOING?",
he was abducted from his home and disappeared. His wife's
identification of the abductors is as follows:

I do not see personal enmity to be the cause. This abduction
is an indication of the hollow nature of the profession of
democracy by the ruling party. We were at the police station very
shortly after the abduction, but the police displayed utter
indifference.

(ii) The Richard de Soyza Case: The case of Richard de
Soyza Journalist and broadcaster (who was abducted on 18.02.1990.
is another instance.25)

(iii) The Adiruppu Street Case: A U NP organiser of a
Colombo Central area was abducted by an armed gang who came in
modern vehicles in the night. The incident, apparently, is a
consequence of an intra-UNP leadership struggle. His wife giving
evidence before the Commission said:

There was no UNP high-up who didn't know my husband. And
yet no one would move in the matter of his abduction and
disappearance.

The disappearance from police custody of suspects regarding
the assassination of a political leader during this period is a
striking instance of the practice under consideration.

(iv) The Disappearance from Police Custody of Suspects
Regarding the Assassination of a Political leader: The Vijaya
Kumaratunga Case

Vijaya Kumaratunge, Leader of the SLMP, was assassinated on
16.02.88. Lionel Ranasinghe and Tarzon Weerasinghe were taken
into Police custody as the suspected assassin and accomplice
respectively. The mother of Lionel Ranasinghe and the sister of
Tarzon Weerasinghe, have stated to the Commission that these
persons disappeared from Police custody while they were detained
at the 4th floor of the CID Headquarters in Colombo.
Tarzon Weerasinghe's sister produced to the Commission a
letter from the ICRC representative who visited this place of
detention had been informed by a co-detainee that this person had
disappeared while in the custody of the CID in March 1990.

The Commission was unable to summon the said witness as the
ICRC informed the Commission that they are unable to disclose the
co-detainee's identity to the Commission. The CID's
position to the IRP had been one of the denial of detention of
Tarzon Weerasinghe. The mother of Lionel Weerasinghe stated that
she visited her son in the custody of the CID and the last time
she visited him was 16.09.89. She was then informed that he was
in remand custody. Both petitioners have had no further
information about these persons' fate until they read
newspaper accounts of the evidence trasnpiring at the Special
Presidential Commission of Inquiry into the assassination of
Vijaya Kumaratunga.

The finding of the Commission of Inquiry into the
assassination of Vijaya Kumaratunga on the disappearance of
Lionel Ranasinghe from custody is as follows:-

The preceding account clearly shows that the conduct of the
police regarding the transfer of the suspect from the CID to
Homagama, his interrogation for five days at Homagama, the ambush
of the police party and the escape of the suspect is laced with
falsity at every turn. The evidence of the respective police
officers stretches credulity to breaking point and more.26

That Commission's finding on the disappearance of Tarzon
Weerasinghe from custody is as follows:-

The evidence is, that Tarzon Weerasinghe was not seen alive
after his detention in the CID.27

It is in evidence before us that no disciplinary inquiry or
action of any kind was taken against the errant police
officers.

(v) The Masssacre on the Eve of the Presidential Election 1988
at SLFP Chief Organiser"s Residence

NF was the SLFP Chief Organiser for Panadura at the
Presidential Election of December 19, 1988. His residence was the
centre for nominating polling agents and other campaign work. On
December 18, 1988 he secured the release of some of his
supporters who bid been arrested by the police on the false
pretence that they were JVP and returned borne around 10.30 a.m.
where several members of the party Youth League including the
Branch Secretary and the treasure had assembled. Within minutes
the residence was sprayed with bullets. Eight of his supporters
had been killed on the spot; another had succumbed to his
injuries later. The police had arrived within minutes at his
house and given him protection. On the previous morning, December
17, two persons clad in army uniform had called over at his house
and had inquired about the state of his security. After
requesting for some posters ofthe SLFP Presidential
candidate "to be put up when she wins" They had
identified themselves as personnel attached to a temporary army
camp at Wadduwe.

NF: Even after such and incident when so many people were
killed in my own house the culprits have not been found. There
were posters against me by the JVP. But I had no direct threats
from them.

My House is situated two or three miles from the police
station. But they arrived within a few minutes at my house. When
I reflect on all these matters I think the Army was responsible
for this incident and that the police also was aware of it.28

This incident is a clear indication of the political dimension
of the use of the structure.

(vi) The Promotion of some Security and police officers found
to be in breath of fundamental rights by the Supreme
Courts:

When the Supreme Court in a 5-Judge Bench decision found a
Viharadhipathi had been prevented from exercising his fundamental
rights to "Freedom of Speech and Expression including
Publication" by a police officer, the state media announcing
the decision that evening announced also that the said police
officer had been given a promotion. The incident that had
violated the Viharadhipathi's fundamental rights was the
seizure of posters objecting to the Referendum, at the time of
the Referendum 1982.29

The same juxtaposition is discernible in the circumstances of
the failure to investigate, prosecute or hold disciplinary
inquiry into instances where the courts has found a Forces or
Police officer to have acted in breath of a fundamental right or
to be responsible in a Habeas Corpus Application.

Three aspects of the evidence before the Commission requires
special mention in this regard.

At the conclusion of the trial-at-bar on the death of
Liyanarachchi from 100 injuries suffered in police custody the
court, accepting a plea by two of the accused police officers to
the crime of wrongful confinement, passed the following
strictures on Premadasa Udugampola, DIG Southern Range, who had
been a Witness at the trial:

The inescapable and irresistible inference deducible from
the entirety of the proved facts in this case is that in
actual fact no such applications for detention orders and
detention orders were in existence on the third of September
1988. But that these documents were fabricated later with
collusion between the first accused and witness Udugampola
for the avowed object and authority on an otherwise illegal
arrest, illegal detention and the illegal removal of a
mutilated Liyanarachchi to Sapugaskanda so as to mislead and
deceive the ultimate deciding authority as to when these
injuries were in fact inflicted.

The court went on to state, as part of its judgement, as
follows:

It is the fervent hope of this court that the Hon.
Attorney General the law enforcement Agencies and the
executive will in the near future probe and investigate into
the issue as to who caused this death, using the varied
facts, matters and information disclosed in these court
proceedings.

No steps, as directed by court, have been taken to this date.
Nor dies the service record of Udugampola show that any steps
have been taken by way of disciplinary inquiry or any other v.
this officer departmentally. By the time the judgement was
delivered in the Liyanarachchi case, 18.03.91 Udugampola was Head
of the newly established Bureau of Special Operations, on
presidential directive.

Case of Sunil of Obeysekerapura

The Case of Sunil of Obeysekerapura: Sunil"s abduction
and disappearance occurred in the context of the inner party
rivalry that occurred at the Colombo Municipal Council Elections
1991. Sunil, a strong UNPer and friend of one 'Malu Nihal'
a leader of the local under world-gang, fell out with Malu Nihal
as they supported the rival UNP candidates who contested the
election. Sunil was abducted by police officers attached to the
Bureau of Special Operations. His mother traced him to the office
of the BSO.

The Bureau of Special Operations was a special unit of the
police established according to its mandate to 'fight
narcotism" corruption, smuggling and terrorism", with
operational jurisdiction island-wide, which was set up in January
1991 on Presidential direction with DIG Premadasa Udugampola as
its Head.

There was no allegation that Sunil was engaged in
"narcotics, corruption, smuggling or terrorism" when he
was abducted by the B. S. O.

All dissent had come to be equated to
"subversion".

The petitioners before the Commission perceived this
clearly. They said:

My husband let the SLFP hold the General Election meetings
in our compound when others wouldn't. They came in a
jeep in the night time and abducted him. My complaint to the
Inspector General of Police was referred for inquiry to the
same officer, now, Asst. Supdt. of police of the area.

I know the murder of my 18 year old President's Scout
son just after his return from an international Scout
jamboree was by the Army, at the local politician's
behest. The local Army Commandant who ordered, and the local
politico who put him up to it, are both equally guilty.

When my 3 brothers, one of them the SLFP Branch President
and all 3 quite outstanding, were abducted, it wasn't to keep
them alive. It was to stifle political discussion.

The then President of the Bar Association of Sri Lanka
in his evidence to the Commission brought this out clearly from
his analysis of the Lawyers who were abducted or were killed
out-right during this period. Lawyers who filed Habeas Corpus
applications, who worked with Christian Service Organations in
the Free Trade Zone for the welfare of workers, Lawyers who
appeared in Trade Union Matters, in legal aid work, met with the
same fate.31

A large number of lawyers who were handling Habeas Corpus and
fundamental rights matters were killed by unidentified gun men.
C. L. was handling a large number of Habeas Corpus Cases in
respect of persons who had been taken into custody arid
disappeared. Mr. N. N. of Gampaha had been involved in a large
number of Hebeas Corpus Cases, but at the date of his killing he
was not involved in these. Mr. K. A. who was killed had been
involved in a large number of cases in respect of University
students who had been taken into custody and could not be traced.
He was also active in the Sarvodaya Legal Aid Centre, Mr. S. K.
at the time of his death was engaged as a Junior Counsel in a
Magistrate Court Case in Theldeniya, where 7 Police Officers of
Theldeniya Police were accused on killing a school boy in a
demonstration. Prior to the murder of S. K. his clerk and another
lawayer's clerk who were eye-witnesses to the shooting of
the school boy, had been killed. A delegation of the BASL met H.
E. the President of Sri Lanka and requested that the Police and
Army personnel should come to an agreement that BASL would be
informed with 24 hours of a lawyer being taken into custody. H.
E. The President agreed to this. The agreement with the three
service Commanders was signed on 21.08.89. On several occasions
lawyers were threatened and taken into custody and subsequently
released at my intervention. Mr. G K. who was practicing in
Gampaha was not involved in Habeas Corpus matters, but he was
involved in Trade Union Work for SEDEC, a Catholic welfare
organisation in the Katunayake Free Trade Zone. Mr. B. of the
Negombo Bar was helping in the work of the Movements for
Inter-Racial Justice and equality (MIRJE) a general feature of
the abductions of lawyers was the fact that they were carried out
by persons in civil coming in unmarked vehicles. This would be
followed by my telephoning the Secretary/Defence who would say: I
will ring some People and ring you back; thereafter he would
phone to say: Your man is safe.

8. An attitude of considering only one's own human
rights as 'Rights' had came into existence

The Secretary Movement for Development and Democratic Rights
(MDDR) an umbrella organisation of voluntary organisations who
work in the field of political, civil socio-economic and cultural
rights, stated in evidence:

At the time terrorism came to be used as a political tool
in the North, the state's view was that it could be
brought under control by slaughter. The resultant State
Terrorism could have only restricted operation in the North.
But within the Police and Army and even the Govt. the
prevalent view was that killing was an essential tool, and
machinery to this purpose, to be put to use at any time
whatsoever, was set up by the state. This machinery was set
up in a frame-work that couldn't be challenged via the
courts. The only legal weapon available against abduction and
killings was the writ of Habeas Corpus. If the inquests and
investigations requisites under ordinary law operated, the
law would not have been reduced to this state of
helplessness. Emergency Regulation 55 permitted a burial
without on inquest EF55's "message" to the
Security Forces was that a human body was no more than that
of a dog or other animal. All this took place in the context
of an attitude of considering only your own Human Rights as
"Rights". This was reflected among lawyers also. On
one occasion our orgnisation proposed that as a principle we
should oppose all Murder, by whomsoever. Those who opposed
this took up the position that what was necessary was
condemnation of killings by state forces and not killings by
others. When we showed that this was not only incorrect in
principle but was in itself a threat to Human Rights, there
were threats to our lives. And as they were in a position to
carry them out, these were not idle threats either.32

See Further post.

9. The Minister of State for Defence on the Government's
Policies

Finally it is the responsibility of this Commission to place
on record the words in Parliament of the Minister of
Defence.

A. On 25.01.90 speaking in Parliament in the debate to extend
the Emergency, the Minister stated as follows:

I know that there are abuses black sheep in the Police
Department and the Forces, but by and large the Services and
the Police are highly disciplined and they have done a good
job for all of us - not only for us, but for all of us. I
am concerned about the abuses and I am personally following
up the action that is being taken against the culprits. I
have asked for a list of name of persons in the Army, the
Navy, the Air Force and the Police who have been accused of
murder, extortion, rape, robbery and connivance with the JVP.
I will follow up action until they are punished and put in
their places. No, matter who they are, no influence will be
tolerated.

We are in the process of cleaning up the local Mafia. That is
why we want the Emergency Extended for a little more time to
finish up all this also. You cannot do these things under the
normal law. It takes a lot of time. By the time my good friends
who are lawyers take time to solve these things the match will be
over (Interruption). We have finished the first eleven and the
second eleven. Now we are tackling the under fourteen fellows.33

1. There is no record of follow-up action against any person
in any Army, Navy Etc. in respect of the series of acts that
constitute a disappearance.

2. "We have finished the first eleven and the second
eleven. Now we are tackling the under 14 fellows" is seen to
have an almost literal meaning. Not a single leader of the JVP
was brought to trial after the arrest of thirteen out of fourteen
Members of the Polit Bureau in the period November-December 1989.
None of them are alive.

3. The incidents attributable to the State Forces continued
after December '89.

THE FOLLOWING IS A CHART: SEE PAGE 43, TOP
FOR ORIGINAL

Security Forces Etc.

July-Dec
'89

Jan-June
'90

July-Dec
'90

Jan-Jun
'91

3052

811

349

58

The number of incidents reported
to this Commission alleged to be at Security forces' hands
for the period Jan. to Dec. 1990 is 1160.

Presumable these were the second eleven and under fourteens
referred to by the Hon. Minister?34

B. In the debate on the extension of the Emergency April 1990,
the Leader of the

Opposition raised the question:

The Hon. Minister for Defence always keeps saying the
match is over and normalcy is restored, what is the necessity
for this Emergency?

The Minister for Defence said:

In regard to the continuation of the Emergency, we have
still a few criminals and murderers masquerading, Yesterday
we caught a youth aged 19 yrs who confessed to me about 70
murders. There are 9 others in that gang. We after these
criminals who have got used to murdering. They must be rid
from society and the police are doing that.35

Just 6 weeks later this "most wanted Youth" was
alleged to have "escaped from custody".36

S. N. Silva J.

After notice issued from this Court an affidavit has been
filed by V.T.S. Chief

Inspector setting out the circumstances with regard to the
arrest of; the said persons. According to the affidavit, on
28.12.89. the said two persons and two others were being taken by
a party of Police officers to be detained at the detention camp
at the Race Course, Colombo. On the way at a place called
Koskandawila Junction the four suspects escaped from the custody
of the Police officers while the officers were engaged in
changing a flat tyre of the vehicle in which they were
travelling.

According to the affidavit to PS, sub-Inspector of Police, on
1.2.90. he went with a police party in order to conduct a raid in
the Pitipana area (coming within the Homagama Police Station) At
Rukmalgama he was few people running into the jungle. At that
state the police opened fire and later they found the four bodies
of the persons who are said have escaped from custody on
28.12.89. These bodies have thereafter been disposed of under the
Emergency Regulations.

I direct the learned Chief Magistrate of Colombo to hold an
inquiry without delay, into the matters contained in the petition
and the affidavits filed in these two applications. In particular
the learned Magistrate will inquire into the following
matters.

1. The circumstances in which the two persons on behalf of
whom these applications have been filed were arrested by the
Police and detained.

2. The circumstances in which the two persons and two others
escaped from the police custody on 28.12.89. In this regard the
learned Magistrate will record the evidence of every officer
present in the vehicle at the time of the alleged escape and if
possible make his observation as to the place from which the
persons are said to have escaped.

3. The circumstances in which the four persons are said to
have died in 1.2.90. in particular the learned Magistrate will
record the evidence of every police officer who was present at
the time and if possible make his observations with regard to the
place at which this incident is said to have taken place.

4. The learned Magistrate will also record the evidence of the
Officer who issued the order for the disposal of the bodies in
terms of the Emergency Regulation particularly with regard to the
observations made as to the injuries on the four bodies and the
means of identification.

1O. Subversive Acts

"We hid from everyone" Subversive killings in the
period 01.01.89. to 31.12.94. as reported to this Commission is
779.

The overall impact of these acts, as revealed by the evidence,
leads the commission to the conclusion that these 779 cases are
779 instance of "Punishment for Dissent."

i. By 1, January 1988, the second Southern Insurrection was
well under way. The stated objective of the Janatha Vimukthi
Peramuna (JVP) was to establish a Marxist State including the
overthrow by force of the Government in office. However, from the
evidence before this Commission we conclude that the impact of
the JVP's activities was that of stifling opposition to it.

ii. The number of subversive killings in the period 01 .01.88.
as reported to this Commission is 779.

iii. The evidence before this Commission reveals the
objectives behind these actions included:

crippling the administration;

control of community;

punishment;

elimination of competition.

A. Crippling of the Administration

Among the activities of the JVP were:

(a) the killing or the disappearance of-

Grama Sevakas, Co-operative employees and other public
servants including government teachers; and

elected representatives of the people from local
government to parliamentarians and

(b) arson to state owned or controlled property.

It was clear that this was the JVP's method of bringing
the administrative activities in the area under the scrutiny of
the Commission to a stand still.

B. Control of a Community

During the period under scrutiny, the JVP called for a ban on
radios and the government controlled media and insisted on
informal curfews, work stoppages and the extinguishing of lamps
and electric lights in the night thus heightening the same of
isolation in a community. The reaction of the JVP to non
compliance to its demands by the community ranged from arson to
private property to the killing or disappearance of
persons.

Amongst the persons thus killed or disappeared were youth who
had refused to join the ranks of the movement. Some other victims
were persons who had refused to provide support in the form of
food, shelter or information, which was expected to be available
on call from the community. The JVP also engaged in so-called
"Cleaning up" operations, establishing their own form
of investigation and punishment of crimes. The investigations of
the Commission revealed the maintenance of a torture camp in the
Ratnapura district by the JVP.

The activities of the JVP were conducted, very often, with
maximum publicity including the public humiliation of suspects of
crimes the display of mutilated bodies of victims and a public
branding of activities opposed by them and the persons engaged in
such activities. The effect of the public nature of these acts
was the control of the community concerned.

C. Punishment

The JVP asserted "a right to punish" persons who did
not comply with their directives or requests or dissented from
the ideology and practice of the JVP. The punishment took the
form of arson to private property, assault of persons and
killings or disappearances and torture. The victims included not
only the direct violator of the JVP's directives but also
members of their families and their friends.

Amongst the victims of the Victims of the JVP were police
officers, members of the armed forces37
and their families who were targeted as the hurdle to the
transformation of the JVP from local based groups to "the
ultimate repository of the state power".

Another group who were victimised by the JVP were persons
aligned with the ruling United National Party.

Persons who exercised their right to stand for elections and
the right to vote, were punished and even killed.

Almost a third of the incidents reported to the Commission
took place in the five month period in the run up to the
Presidential and Parliamentary elections in 1988 and 1989, which
the JVP was opposed to, highlighting this attitude.

Subversive Incidents: Aug. '88 - Feb.
'89.

TABLE 2

Time Period

Aug '88

Sept '88

Oct '88

Nov '88

Dec '88

Jan '89

Feb '89

Total

Mar '89

Subversive Acts

8

23

27

43

38

42

49

230

21

Security Froces

13

9

22

49

130

52

47

322

52

D. Elimination of Competition

Many of the incidents reported to the Commission are only
explicable in terms of the elimination of competition. The
victims of the JVP included local based politicians belonging to
opposition parties and in particular to the other Marxist-based
parties.

Community activists including bhikkus and trade unionists who
were not aligned with them and people who had left the JVP at
some point or the other but continued to be held in public
regard. Any possible threat to the overall control of the
community by the JVP was immediately dealt with.

IMPACT OF THESE ACTIVITIES

The impact of the activities of the JVP is discussed at length
in Chapter Twelve. For the purpose of the issue of
responsibility, the Commission wishes to stress the
following:

(i) the persons who were revealed to have felt the impact of
these actions were amongst the most disempowered of the
Community.

(ii) communities were isolated into pockets from the
mainstream of activity in the country and deprived of the
community services which were usually available to them (public
transport, schooling, medical attention)

(iii) the JVP conducted a campaign to eliminate space for
dissent.

SOME CASES ILLUSTRATIVE OF THE SPECTRUM OF
SUBVERSIVE KILLINGS

Case of PPD of Pattiyawala

PPD was a Grama Sevaka. On a night in March, 1988 he had been
abducted from home by subversives. His charred body had been
discovered two days following the incident of abduction. In this
case the witness, (Mother of PPD) revealed that two of her
grandsons also had been killed on the same day. The JVP had
threatened the three sons of another Grama Saveka to resign from
their posts around the same time

Case of DLS of Nagoda

DLS was an LSSP activist. By the year 1988 he had counted 25
years in politics at Village Committee (Pradeshiya Sabha) level.
In April 1988 he had left home to hand over his nomination papers
for the Provincial Council elections. On the same night while
taking a wash at the well close to his house JVP activists had
come and shot him. A few months later DLS died in hospital. Prior
to the incident DLS had been under constant threats from the JVP.
An year later the elder son of DLS was also killed by the JVP.

Case of PAD and PAL of Makandura

PAD and PAL (two brothers) were active supporters of a well
known political personality 'X' in the Communist Party.
(Presently a Provincial Council Minister). On a night in May,
1988 they had been abducted by subversives. Within a matter of
ten minutes the inmates of the house of PAD and PAL had heard gun
shots. The inmates later recovered the dead bodies. PAD had also
been a Branch Secretary of the Communist Party. The families of
PAD and PAL had earlier threatened by subversives for working on
their paddy fields, during an unofficial curfew. PAD and PAL had
been jointly providing for six families who had now been left
destitute as a result of their demise. Later another relative of
PSD and PAL who had been a UNP supporter had been killed by the
subversives.

Case of HPG of Sevanagala

HPG was a USA candidate at the 1988 Provincial Council
elections. He had not been successful at the polls. Shortly
thereafter a group of armed subversives had broken into HPG's
house. The other inmates of the house had been shuffled into a
room and HPG had been forcibly removed. Within a few moments the
inmates heard gun shots. HPG had been found dead in a pool of
blood.

Case of HGK of Ambalantota

HGK was a UNP activist and a father of two minor children. His
wife was in the fifth months of pregnancy. On a night in October,
1989 an unidentified crowed of persons had abducted HGK from his
house. His body was later found hanging from a transformer. His
head had been severed. There was a poster near the body which
read "Death to the traitors". On the day of the funeral
HGK's family had received threatening letters with the
warning Do not carry the coffin above knee-level.

Case of ES and EP of Mawarawala

ES and EP (son and father) had been burnt inside their house
on an evening in January, 1989, Earlier seven armed persons
(three were named by the wife of EP) had came to the house,
forced the five daughters and the witness to leave the house and
tied them to trees a little away from the house. The family had
watched helplessly as they saw the house was set on fire with ES
and EP inside. In or about 1985 the JVP had endeavoured to
recruit two other sons of NMS to their Cadres without success.
Those two sons had disappeared in 1985.

Case of KAA and DMD of Panadura

KAA was a candidate of the UNP at the 1988 Provincial Council
elections. He had been subjected to threats by the JVP. On a day
in February, 1989 both KAA and his wife were killed by
subversives. Subversive activities in this area concerned had
reached high proportions around this time. Two months after this
incident, his sister DMD, a member of the Municipal Council was
also killed.

Case of BM of Embilipitiya

BM's brother-in-law 'X' was a member of the
armed forces. BM's was a cultivator family in Gangeyaya,
Embilipitiya. The family had been under constant threats from JVP
who had demanded the resignation of 'X' from the army.
In the middle of the night on a day in February 1989 BM's
family had heard several gunshots in the vicinity of their house.
BM was not in the house at the time. Later the members of BM's
family discovered that BM along with six others had been killed.
Thereafter the army had for a period of six months provided the
members of BM's family with protection from subversives.

Case of HWD of Buddegama

HWD a support of the United National Party and an active
participant in Youth Affairs in the village. Prior to the 1989
General Elections the JVP had threatened to kill those who would
attempt to go to the polls. On a night in April, 1989 when he had
been visiting his uncle subversives had abducted HWD from his
uncle's Later he had been found killed about quarter of a
mile from his uncle's abode. His hands and legs had been
tied, teeth broken and several stab injuries found all over his
body. HWD's uncles also had been killed on the same day,

Case of DP of Suriyawewa

DP was a father of four children, He was a cultivator and
worked openly for the SLFP at the 1989 General Election defying
JVP threats. One night in February subversives had broken into
his house. He had been blindfolded and abducted. His wife who was
in the fifth month of her pregnancy and the other inmates had
been warned not to leave the house. DP was found dead the
following morning near his house. His body was riddled with
bullets.

11. Conclusion

The information and material placed before us impel the
observation that the State with allied agencies as well
as subversives were responsible for the removals and
disappearances that prevailed during the period under
investigation. Those families whose members fell victim
to the subversive terror as well as families devastated
by the counter subversive measures adopted by the State
and its agencies will probably continue Vindictam
Spirantes. Both these groups however cannot overlook
the misery that had befallen the surviving members of all
victimised families. In the address of these needs lies
the means to bring about a national reconciliation.

In this regard the perception of the members f the public
who do not fall into either category would be important
in that this perception would be the yardstick to measure
community concern in a crisis situation.

National reconciliation necessarily pre-supposes the
existence of conditions for commanding public confidence
in the existing structures. A failure to hold democratic
elections when due, promotion of handpicked police
officers particularly when they are found to have
transgressed the law by the highest court, and attempting
to stifle political leaders of the opposition did not
help towards that cause.

It is unreasonable to expect that the further evidence
required for the identification to pin individual liability in
the "vertical structures" would be available to the
petitioners before us. Only Persons who were within the system
itself either decision-makers, participants, or as witnesses to
same could provide such evidence. The political dimension of the
events in respect of which responsibility is sought to be
identified is very clear, however from the few witnesses with
personal knowledge of the times who came be fore the Commission.
We have analysed their evidence in the foregoing
paragraphs.

The South African Truth and Reconciliation Commission and some
Latin American ones have provisions enabling the admission of
participation and consequent amnesty, to witnesses who came
before the Commission.38

Finally, on the issue of "Responsibility", a
distinction needs to be drawn at all times in the identification
of "those responsible" where the State is under the
control of a civil government, as in our case, from the situation
where the State is in the control of a military regime. Whatever
may be said in support of an identification and punishment of a
few military leaders in the situation where the state is in the
control of a military regime such a limited exercise can never
suffice or be condoned in the situation of a state which is under
the control of a civil government.